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Thursday, March 01, 1962

Of Rights: Natural and Arbitrary

Dr. Carson is Associate Professor of History at Jacksonville State College in Alabama.

The number of rights to which Americans are entitled appears to be increasing rapidly. Almost any current magazine or newspaper is apt to carry mention—sometimes casually—of some new right. They run the gamut from the right of workers to "toilet time" to the right of all adult citizens to vote. The establishment of these rights does not seem to require a constitu­tional convention or even a court order. Some of them may, for ought I know, be promulgated by cub reporters. They derive in spirit, for the most part, from an "Economic Bill of Rights" set forth by President Franklin D. Roosevelt in his Annual Message to Congress in 1944. He said, in part:

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a sec­ond Bill of Rights under which a new basis of security and prosperity can be established for all—regard­less of station, race or creed.

Among these are:

The right to a useful and remuner­ative job in, the industries or shops or farms or mines of the nation;

The right to earn enough to pro­vide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every business man, large and small, to trade in an at­mosphere of freedom from unfair competition and domination by mo­nopolies at home or abroad;

The right of every family to a de­cent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident and unemployment;

The right to a good education.’

At the risk of being labeled an ingrate for looking a gift horse in the mouth, I have some questions about this accretion of rights. Does the apparent "gift horse" carry a concealed price tag? Can rights be established at will? Are there any limitations upon what may be claimed as a right? What are the foundations and sources of these rights? To answer these questions we must delve into the nature and history of rights.

A right, according to the Amer­ican College Dictionary, is "a just claim or title, whether legal, pre­scriptive, or moral." More, it is "that which is due to any one by just claim." As an adjective, right is correctly used when it is "in conformity with fact, reason, or some standard or principle." A right, then, is something to which one is entitled, and it must be founded upon reality, reason, or principles. This definition can only serve as an abstract guide; the abstractions must be given content before they will serve to distinguish between true and false claims to rights. This can be done by referring to the history of American claims to rights.

Traditional Rights

To lay claim to certain rights is in keeping with American tradi­tion. To hold that some rights should be inviolable has prece­dents antedating the Declaration of Independence, for the Rights of Englishmen were recognized in colonial charters of the seven­teenth century. Thus, there has never been a time in the history of English America when the in­habitants did not believe that they were entitled to some rights. Further, from colonial times to the mid-twentieth century the in­sistence upon certain rights has been a central theme in our his­tory. Our attention, however, must be focused upon what rights were claimed, what they were based upon, and what changes have occurred.

The earliest grants of rights to Americans stemmed from the King of England. His authority derived from his claim to rule by Divine Right. But in the course of the seventeenth century a momentous change occurred in men’s beliefs about the source of their rights. Thinkers began to reason that rights derived directly from Na­ture whence they had been im­planted by God, rather than indi­rectly through Divinely appointed authority. This view was used by John Locke to justify the Glori­ous Revolution in England, and by the time of the American Revolution it had been accepted by most thinking Americans. The rights which Americans claimed and instituted protections of in our revolutionary era were re­ferred to as Natural Rights.

The Law of Nature

The Natural Rights Doctrine can be succinctly summarized. It held that God had created the universe and that in so doing, as Alexander Hamilton put it, "the Deity, from the relations we stand into Himself and to each other, has constituted an eternal and immutable law, which is indispen­sably obligatory upon all man­kind, prior to any human insti­tution whatever. This is what is called the law of nature…" After quoting briefly from Blackstone, Hamilton continues his explana­tion:

Upon this law depend the natural rights of mankind: the Supreme Being gave existence to man, to­gether with the means of preserving and beautifying that existence. He endowed him with rational faculties, by the help of which to discern and pursue such things as were consist­ent with his duty and interest; and invested him with an inviolable right to personal liberty and personal safety.

Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property, or liberty; nor the least authority to command or exact obedience from him, except that which arose from the ties of consanguinity.

These, then, were the founda­tions upon which Americans based their rights when they set up the institutions of civil society in the Republic. They were founded up­on the reality of a created uni­verse whose Creator had invested with natural laws. The Founders believed that they had used rea­son to discover these laws, and that they were reasonable. The principles of natural rights, how­ever, need to be more specifically stated. Natural rights were those rights which man would have if there were no governments or other human institutions. They would be rights because no man would have a right to take them away, though he might wrongly do so by the use of force. Thus, no man can claim a right to the life of another. No one has a right to the liberties of another. In like manner, no man has a right to the fruits of the labor of another. In short, by nature a man would have the right to the exercise of his faculties in pursuit of his own well-being, so long as he did not trespass upon the equal rights of others.

In a state of nature, however, natural rights would be endan­gered by the strong, the preda­tory, and evil combinations of men. Thus civil societies and gov­ernments were necessary to pre­vent the trespass of one man or a group upon the rights of another. In society, according to eighteenth century thinkers, natural rights gave way to civil rights. But this change did not niter the content of liberties; it merely gave social support to them. As Hamilton said, "Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on hu­man will and caprice, but it is conformable to the constitution of man, as well as necessary to the well-being of society."3 It should be clear from this that govern­ments might institute protections of civil rights but that the rights would not stem from governments.

Usurpation by Government

Many Americans feared that the government created to protect the individual in his rights would usurp them itself. As Thomas Jefferson said, "There are rights which it is useless to surrender to the government and which gov­ernments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writ­ing; the right of free commerce; the right of personal freedom."4 Jefferson was expressing his discontent with the original United States Constitution because it did not specifically prohibit the gov­ernment from trespassing upon the rights of the individual. It was to answer this objection that the first Ten Amendments were added to the Constitution. ‘These amendments were carefully worded. They do not imply a grant of rights by the government; the belief that they do is one of the distortions that has crept into our national thought. They are, in­stead, limitations upon the gov­ernment itself. Their phraseology makes this clear: "Congress shall make no law respecting an estab­lishment of religion" (Article I); "the right of the people to keep and bear Arms shall not be in­fringed" (Article II); "The right of the people to be secure in their persons… shall not be violated" (Article III). The Bill of Rights should be correctly construed as prohibiting the government from trespassing upon natural rights as civil rights.

Recent Claims

The above are the facts, rea­sons, and principles upon which the rights claimed by our ances­tors were based. Now let us ex­amine some of the recently claimed rights to see if we can determine their character. Does every child have a right to an education? If so, it must mean that he has a claim upon someone to educate him; for a right to be viable it must be realizable. Education re­quires a teacher. A teacher must come forth willingly or one must be procured by inducements or co­ercion. In practice, the problem is one of employing teachers and paying them for their services. The money for payment must be willingly given, or it, must be ex­tracted from those who have it by force or threat of force. In either case, however, for a child to have a right to education means that he has a right to the fruits of the labor of others. In short, the right to an education can only be estab­lished at the expense of another and prior right.

Does everyone have a right to an adequate wage? If so, it must mean that he has a claim upon someone to pay it to him. Suppose that the workman does shoddy work, that he does not produce goods in sufficient amount to re­ward his employer for a decent wage, that he is incompetent, or that his skills are no longer sal­able. Does he still have a right to a decent wage?

If he does, it will have to be taken from the fruits of the labor of others. The same thing can be said of the right of the farmer to "sell his products at a return which will give him and his family a decent living; the right of every family to a decent home; the right to adequate medical care," and so forth. The establishment of such rights would be the instituting of perpetual coercion and injustice. Even if enough people would will­ingly give from the fruits of their labor to provide these benefits, that would not establish them as rights, for no claim to a gift can be established without changing it from a gift to a tax.

Human Rights

Those who favor instituting "economic rights" have invented a supposed distinction between "human rights" and "property rights." These human rights are said to be prior to and superior to property rights. Thinkers who make this distinction are accus­tomed to refer to all concern with money, finances, and property as selfish and motivated by the desire for "pecuniary" gain, the latter being ignoble and inhuman in its consequences. But property (or monetary) rights are reducible to the rights of human beings to the fruits of their labor and the enjoy­ment of their life. The expropria­tion of property or money is an expropriation of that part of the life of a man which he has spent in acquiring or improving his prop­erty and earning his money. More, it is an ex post facto incursion upon the liberties of the individ­ual, for it is the taking from a man the product of his use of his liberty. If the right to the dis­posal of his property is not a hu­man right, there are no human rights.

Who Is To Provide?

Enough has been said to enable us to characterize the nature of most of these latter day claims to rights. They must be provided by someone or some agency. They are not founded in the nature of the universe, the nature of ex­istence, or natural law. Thus, they are arbitrary creations, the prod­uct of the undisciplined imagina­tions of men. Can rights be arbi­trarily created? If they can, what would be the effect of doing so? Undoubtedly, language can be used, or abused, to announce an almost limitless number of rights. Legislatures can embody such claims in acts, and politicians can run for office on the basis of them. But what cannot be done is to make a grant of something sub­stantial without removing it from someone who is in possession of it. No one can be given the right to associate with me without tak­ing from me my right to choose with whom I will associate. No one can be given the right to goods which I produce without taking from me my right to the fruits of my labor. No one can have a right to my services without in­fringing my liberty of serving whom I will.

An arbitrary "right," then, is based upon appearances rather than reality, upon expediency rather than reason, upon confu­sion rather than principles. It is founded upon the false premise (the appearance) that govern­ments can create rights, that ne­cessity or desirability can give rise to a just claim, and that a man’s life and liberty can be separated from the fruits of them. An arbi­trary "right" is one which would entail a limitation on other rights in its normal exercise. A natural right is one which can be exercised without trespassing upon the rights of others. It is founded in the nature of human existence. An arbitrary "right" has to be pro­vided; a natural right has only to be acknowledged and protected. Ar­bitrary "rights" require positive enactment by governments; nat­ural rights require only negative prohibitions.

The Defamation of Natural Rights

The natural rights doctrine has been "discredited" in fashionable intellectual circles. This was ac­complished by imputing to natu­ral rights philosophers a false conception of the history of man. The defamers of natural rights profess to believe that our ances­tors believed that man existed at one time in a state of nature, and that the validity of their concepts depends upon the historical exist­ence of such a state. This is not now and never was a valid issue; whether man ever actually existed in a state of nature is wholly ir­relevant. Natural rights philoso­phers based their doctrines upon the nature of reality, not upon the course of historical development. They reasoned that governments were human creations, and that human creations were artificial. By a state of nature they meant the natural condition of man with­out such human artifices. They were peering beneath the surface of appearances to the underlying reality. They were holding that there is a limiting and lawful reality prior to man-made laws and institutions. This conception of reality has no more been dis­credited than has the law of gravity. Nor does the possibility that these laws may differ some­what upon the moon make any difference to our present existence upon earth. In order actually to discredit the natural rights doc­trine, it will be necessary for thinkers to demonstrate that we do not live within a confining reality. Let them undertake flight on our planet without attention to the laws of aerodynamics. Let them show that they can bestow goods without taking them from their actual producers. Let them create rights which will not im­pinge upon earlier rights and do not affront man’s sense of justice. Let them submit their Economic Bill of Rights phrased in the legal language which would per­mit their embodiment into law as Constitutional Amendments, and let us judge whether or not they would result in an abrogation of the original Bill of Rights.

Mutually Exclusive Concepts of Rights

Natural rights and arbitrary rights cannot exist side by side in the same society; they are mu­tually exclusive. Every effort to create new rights in the twen­tieth century has already resulted in a diminution of natural rights as understood in the eighteenth century. There is an inverse ratio between the right of Americans to the fruit of their labor and the right of all Americans to a decent home. The truth of this statement is spelled out on the de­duction side of Everyman’s pay check.

Most serious of all is the fact that if government can create rights, it can withhold and de­stroy rights. The practical conse­quence of this fact is that if rights are derived from governments, there are no rights. Gov­ernmental favors may masquer­ade as rights. They may even as­sume a semblance of constitution­ality. But such favors are instru­ments of power; they are arbi­trary "rights" granted under the exigencies of the circumstances, subject to recall and change when circumstances change. If it is ex­pedient for every American to have a decent home today in view of the threat of international com­munism, it may be necessary to­morrow for many Americans to

be reduced to abject poverty in order not to incite the envy of the rest of the world. In short, when rights are arbitrarily created, there are no rights. The extent to which we have accepted the belief that children have a right to edu­cation, that farmers have a right to a parity of income, that all have a right to the latest medi­cine, and so on, is the measure of the extent to which we have yielded up our natural rights. It is the de­gree to which we have sold our heritage for a mess of pottage.

***

Supporters of Schemes

The hard-worked and over-burdened who form the great major­ity, and still more the incapables perpetually helped who are ever led to look for more help, are ready supporters of schemes which promise them this or the other benefit by State-agency, and ready believers of those who tell them that such benefits can be given, and ought to be given. They listen with eager faith to all builders of political air-castles, from Oxford graduates down to Irish ir­reconcilables; and every additional tax-supported appliance for their welfare raises hopes of further ones. Indeed the more numer­ous public instrumentalities become, the more is there generated in citizens the notion that everything is to be done for them, and nothing by them. Each generation is made less familiar with the attainment of desired ends by individual actions or private com­binations, and more familiar with the attainment of them by governmental agencies; until, eventually, governmental agencies come to be thought of as the only available agencies.

Clarence Carson (1926-2003) was a historian who taught at Eaton College, Grove City College, and Hillsdale College. His primary publication venue was the Foundation for Economic Education. Among his many works is the six-volume A Basic History of the United States.

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